15 Conn. L. Rptr. 377 | Conn. Super. Ct. | 1995
On March 22, 1995, the defendants filed an answer and asserted five special defenses including (1) payment; (2) the plaintiff lacks standing; (3) breach of the obligation of good faith and fair dealing; and (4) exemption of farm assets; and (5) the defendants requested a marshalling of the assets in a companion suit entitled Centerbank v. Philip R. Fazzone, CV-94-0066477, J.D. of Litchfield at Litchfield, in order to satisfy the plaintiff's debts.
The defendants claimed the case to the jury trial list on March 24, 1995. The plaintiff now moves to strike the case from CT Page 12036 the jury docket pursuant to Practice Book § 282 and has filed a memorandum of law in support of the motion to strike. The defendants have filed a memorandum in opposition to the plaintiff's motion to strike from the jury docket.
An evidentiary hearing was held on October 10, 1995, wherein Dr. Fazzone testified that he did not read any of the nine promissory notes before signing them and testimony from Mrs. Fazzone on the collateral matter referred to above, did not provide any reason to believe that she had read notes either. Dr. Fazzone testified that he did not so much as scan the documents to ascertain the amount of the notes or the interest. Dr. Fazzone also testified as to his educational background which was extensive and that he is a cardiologist who has been practicing for 32 years. In addition, Dr. Fazzone testified that he was not represented by counsel when he signed the notes which was done informally either at his office, or home, or at the bank's office.
DISCUSSION
Practice Book § 282 provides: "If in the opinion of the court a case or matter is improperly upon a trial or assignment list, it will be stricken from the list, or otherwise disposed of, at the discretion of the court. Cases may at any time, by order of the court, be placed on either list." A party can move that a case be stricken from the jury docket. See Falk v.Schuster,
The Connecticut Supreme Court has set forth the following standards which are used to determine whether a party is entitled to a trial by jury: "The constitution of Connecticut, article
In the present case, the plaintiff argues that the court should consider the following factors in determining whether the jury waiver in each of the nine promissory notes should be enforced: "(1) whether the jury waiver was conspicuous; (2) whether the parties were represented by counsel; (3) whether the parties were on equal footing in their negotiations; and (4) whether the party objecting to the waiver actually had a choice as to whether to accept the waiver provision." (Plaintiff's memorandum of law in support of motion to strike at p. 3). The plaintiff argues that by virtue of the fact that the waiver was contained in nine separate notes, the relinquishment can not be said to be unintentional or unknown. It is noted that although the waiver was conspicuous in that it was immediately above one of the two signature lines, this does not dispense with the other considerations. In this case, the notes were signed by the parties without representation by counsel. As to the remaining criteria, equal footing and choice, the plaintiff did not carry the burden of proving these criteria.
The defendants' argue that the waiver in this case was not knowingly and intelligently made and that the motion to strike should therefore be denied. "Waiver may be made by the specific and knowing agreement of the parties. The mere inclusion of a waiver provision in a document does not in and of itself automatically in all instances constitute a binding waiver by the party against whom waiver is claimed." The Connecticut NationalBank v. Swanney Toyota, Inc., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 506919 9 Conn. L. Rptr.241
In Nowey v. Kravitz,
PICKETT, J.